Citation Nr: 21070070 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-25 690 DATE: November 22, 2021 ORDER Entitlement to service connection for tension headaches is granted. New and material evidence having been submitted, the claim of entitlement to service connection for a heart disability is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a left knee disability is reopened. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a sinus disability is remanded. FINDINGS OF FACT 1. The Veteran's tension headaches had their onset in service. 2. A June 2013 rating decision denied service connection for a heart disability. The Veteran did not appeal or submit new and material evidence within a year of that rating decision. Thus, the June 2013 rating decision became final. 3. The evidence added to the record since the June 2013 rating decision raises a reasonable possibility of substantiating the claims. 4. A June 2013 rating decision denied service connection for a left knee disability. The Veteran did not appeal or submit new and material evidence within a year of that rating decision. Thus, the June 2013 rating decision became final. 5. The evidence added to the record since the June 2013 rating decision raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The criteria for service connection for tension headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a heart disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2016 and April 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The March 2016 rating decision declined to reopen the Veteran's claims for service connection for a heart disability and a left knee disability. The April 2017 rating decision denied service connection for headaches, a left ankle disability, bilateral hearing loss, tinnitus, and a sinus disability. In his May and September 2017 substantive appeals, the Veteran requested to present sworn testimony before a Veterans Law Judge. In March 2019, the Veteran was issued notice that a hearing was scheduled for April 8, 2019. In August 2019, the Veteran's representative requested to reschedule the hearing. In August 2021, the Veteran was issued notice that a hearing was scheduled for October 12, 2021. Included with these notices was comprehensive information regarding the rules governing rescheduling of the hearing and failure to report to the scheduled hearing. The Veteran failed to appear to his scheduled hearings. The Veteran's representative acknowledged the Veteran's failure to appear and has requested that the Board proceed with adjudication. The representative did not expressly withdraw the request for a hearing. Neither the representative nor the Veteran have requested to reschedule the hearing and the record does not otherwise demonstrate good cause to reschedule. If an appellant fails to appear for a scheduled hearing and a request for postponement has not been received the case will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d). A request for a hearing will not be granted unless the failure to appear was with good cause and under such circumstances that a request for postponement could not have been submitted. A request for a new hearing must be submitted not more than 15 days following the original hearing date. Id. The Veteran has not requested a new hearing. Accordingly, the hearing request is deemed withdrawn and the Board may proceed with appellate review. Id. Service Connection The Veteran seeks entitlement to service connection for headaches. See November 2016 VA Form 21-526. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has tension headaches. See January 2017 VA examination report. The Veteran contends that his headaches started in service and have continued since. Id. Thus, the first two Shedden elements are met and not in dispute. The narrow issue before the Board is whether the Veteran's tension headaches had their onset in service and have continued since. A VA examiner noted that the Veteran had the same type of headache in service as he does presently. See January 2017 VA examination report. Indeed, the Veteran was diagnosed with and treated for tension headaches in service on multiple occasions. See service treatment records. He complained of severe and/or recurrent headaches that had lasted from two days to a week. Id. As noted above, the Veteran stated that his headaches started in service and have continued since. The Veteran is competent to report that he experienced such pain though he did not seek treatment. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His statements are credible and entitled to probative weight. The Board finds the Veteran and the VA examiner persuasive. Together, they show that the Veteran's disability existed in service, currently, and has remained constant between. Thus, the third Shedden element is met. Accordingly, the Board finds that the Veteran's tension headaches had their onset in service. Therefore, the criteria for service connection for tension headaches have been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND Consistent with VA's duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event has a low evidentiary threshold. Id. 1. Entitlement to service connection for a heart disability is remanded. The Veteran has multiple heart disabilities, to include coronary artery disease, a prior myocardial infarction, and angina. See March 2016 private medical records. He contends that his heart disabilities started in service. See November 2016 notice of disagreement. He has not been afforded a VA examination. There is insufficient competent evidence of record to determine whether his heart disability is attributable to his time in service. Therefore, the low evidentiary standard is met, and a VA examination is necessary. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. The Veteran has sought treatment for his left knee and left ankle. See April 2017 and August 2017 VA treatment records. He was diagnosed and treated for gout as to both joints. Id. He contends that his disabilities started in service. See November 2016 notice of disagreement. He has not been afforded a VA examination. There is insufficient competent evidence of record to determine whether his disability is attributable to his time in service. Therefore, the low evidentiary standard is met, and a VA examination is necessary. 4. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran has bilateral hearing loss for VA compensation purposes. See March 2017 VA examination report; 38 C.F.R. § 3.385. He earned a sharpshooter badge in service. See DD-214. The Veteran was afforded a VA examination in March 2017. The examiner opined that the Veteran's bilateral hearing loss was not caused by service because his MOS had a low probability of noise exposure. See March 2017 VA examination report. The examiner noted that a history of post-military occupational noise exposure "is a factor." Id. The Board finds that this opinion has no probative value because it is not supported by adequate rationale that explains the basis for the conclusion reached and relies on the absence of contemporaneous medical records. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, a new examination is necessary on remand. 5. Entitlement to service connection for tinnitus is remanded. In March 2017, the VA examiner noted that the Veteran's tinnitus was caused by his bilateral hearing loss. Thus, these issues are intertwined and the claim for service connection for tinnitus is remanded. 6. Entitlement to service connection for a sinus disability is remanded. The Veteran initially filed a claim seeking service connection for his "sinus issues." See November 2016 VA Form 21-526. The medical records do not show any diagnosis related to the Veteran's sinuses. Reading the Veteran's claim in the broadest scope, he has indicated that he may have a functional impairment that rises to the level of a disability. In determining whether symptoms cause functional impairment in earning capacity, VA's rating schedule may provide guidance but there must be competent evidence to show that an impairment rises to a level that affects earning capacity. See Wait v. Wilkie, 33 Vet. App. 8 (2020). The requirement for service connection that a current disability be present is satisfied when a veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). When resolving doubt in favor of the Veteran, the Board finds that the first McLendon element is satisfied at this stage of the appeal insofar as there is an indication of a current disability. The Veteran contends that his sinus issues are related to service. See November 2016 VA Form 21-526. He was treated therein for "marked sinus congestion." See STRs. There is insufficient competent evidence of record to determine whether he has a current sinus disability and, if so, whether it is attributable to his time in service. Therefore, when resolving doubt in favor of the Veteran, the low evidentiary standard is met, and a VA examination is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his heart, left knee, left ankle, bilateral hearing loss, tinnitus, and sinus condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in #1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his heart disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all heart disabilities present. For each identified disability, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's heart disability was incurred in, or is otherwise related to, his time on active service? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in #1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his left knee and left ankle disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all left knee and left ankle disabilities present. For each identified disability, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's disability was incurred in, or is otherwise related to, his time on active service? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the development in #1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's bilateral hearing loss and/or tinnitus were incurred in, or are otherwise related to, his time on active service, to include noise exposure from gunfire in service? B. Is it at least as likely as not that the Veteran's tinnitus was (a.) caused or (b.) aggravated by his bilateral hearing loss? The examiner should consider the Veteran's MOS and the sharpshooter badge he earned in service. See DD-214. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After the development in #1 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his sinus disability, if any. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all sinus disabilities present, if any. For each identified disability, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's sinus disability was incurred in, or is otherwise related to, his time on active service? The examiner should consider the "marked sinus congestion" noted in service treatment records. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.